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I. Introduction: History & Background

I. Introduction: History & Background

In May, 2010, Wisconsin enacted a shield law protecting confidential sources and newsgathering materials. The act provides journalists with an absolute privilege to withhold confidential source information and a qualified privilege to protect from disclosure of other newsgathering information. Wis. Stat. § 885.14. There have been no state court decisions interpreting the shield law.

Journalists in Wisconsin have a qualified privilege against testifying in both civil and criminal proceedings. This court-recognized privilege, based on both the state and federal constitutions, applies regardless of whether the journalist obtained the information from a confidential or non-confidential source.

I. Introduction: History & Background

Note: In 2011, West Virginia enacted a statutory shield law providing strong protection for reporters to refuse to disclose the identity of confidential sources, and documents or other information that could identify confidential sources. W. Va. Code § 57-3-10.

Generally speaking, the status of the reporter's privilege in West Virginia is strong. Although the contours of the privilege are not as developed as they are through caselaw in other states, and there is no statutory shield law, the Supreme Court of Appeals of West Virginia has fashioned a strong privilege to protect reporters, especially in civil cases. Because of the strength of the privilege, incidences of reporters being jailed or fined over privilege issues have been exceedingly rare in West Virginia.

I. Introduction: History & Background

Kansas adopted a shield law in April 2010. See Kan. Stat. Ann. § 60-480 - 60-485 (2017). The case law governing actions in the state courts is poorly developed. In the federal courts, the decisions of the United States Court of Appeals for the Tenth Circuit control. These decisions recognize and apply a relatively strong qualified privilege.

I. Introduction: History & Background

Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter's privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters' confidential sources in some circumstances.

I. Introduction: History & Background

The reporter's privilege in Ohio is based primarily on statutory shield laws which protect the identity of confidential sources. In addition, however, a number of Ohio appellate and trial courts have recognized a constitutional protection for non-published/non-broadcast reporter's notes, outtakes, and other source-related materials.

I. Introduction: History & Background

The Arizona legislature has enacted two statutes that protect reporters from the compelled disclosure of unpublished notes, outtakes and other journalistic work product. First, A.R.S. § 12-2237 (the "Arizona Shield Law") shields journalists from compelled disclosure of confidential sources. Illustratively, the Arizona Superior Court upheld a reporter's right not to produce to a grand jury notes and tape-recorded conversations with an at-large serial arsonist. In re Hibberd, 262 GJ 75, Feb. 26, 2001.

I. Introduction: History & Background

Maryland's Shield Law was most recently amended in 1988, in response to the decision in Tofani v. State, 465 A.2d 413, 9 Media L. Rep. 2193 (Md. 1983). Tofani concerned a journalist who had written and published several articles about sexual assaults in prison. 465 A.2d at 414. The journalist quoted and identified several of the victims and assailants. Id. When the journalist was subpoenaed to testify before a grand jury regarding the accuracy of her articles, she refused to disclose the names of her sources, on the basis of Maryland's Shield Law.

I. Introduction: History & Background

Oklahoma has had a shield law since 1974. Originally adopted at the urging of the Oklahoma Press Association following the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the journalist's privilege statute is now incorporated in the state's evidence code. It has been the subject of only one reported case, Taylor v. Miskovsky, 1981 OK 143, 640 P.2d 959.

I. Introduction: History & Background

Several high profile cases -– including one involving the 85-day jailing of a New York Times reporter who defied a court order to reveal her source to a grand jury -– have reshaped the landscape of the reporter's privilege within the D.C. Circuit. These cases have reinforced the existence of a First Amendment privilege in the civil context, all but foreclosed its existence in the grand jury context, and raised the possibility of a federal common law reporter's privilege available in all contexts.

I. Introduction: History & Background

California has a reporter's privilege embodied both in Article I, § 2(b) of the California Constitution and in California Evidence Code § 1070. California courts also have recognized a reporter's privilege under the First Amendment. The California Supreme Court has interpreted these provisions to give broad protection to reporters. In addition, in response to a number of highly-publicized reporter subpoenas, the California Legislature adopted procedural mechanisms designed to confer greater protection for reporters.